New Delhi: The seven-year-old Narendra Modi government has surpassed the previous United Progressive Alliance (UPA) government of 10 years in the number of ordinances brought out, suggesting the current government’s tearing hurry to push legislative changes without the consultation of the parliament, the Hindustan Times has reported.
According to the data published by PRS Legislative Research and Lok Sabha secretariat, the UPA government had promulgated 61 ordinances between May 2004 and May 2014. However, the Modi government since its time in office from May 2014 has passed 76 bills through the ordinance route.
The constitution allows the government of the day to use the ordinance route when the parliament is not in session and an emergency situation requires that the government has to respond immediately by making changes to a piece of legislation or bring in fresh legislation. Once the Union cabinet clears it and the President gives his assent, the ordinance becomes law.
However, the government after it is notified by the President should table it before the parliament within the first six weeks of its sitting. The ordinance should be brought out in the form of a bill, where the parliament after due deliberations can choose to approve it or reject it completely or pass it with any modifications. For any reason, if this due process is not followed, the ordinance lapses after the stipulated time frame. Alternatively, the President can withdraw the ordinance.
While virtually every government has used the ordinance route to make laws, it has become controversial under the Modi government the way it has been used.
The Central farm laws which met with widespread protests were initially brought through the ordinance route. The Farmers Produce Trade and Commerce (Promotion and Facilitation) Ordinance, The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, and the ordinance to amend The Essential Commodities Act were brought in June 2020. All three ordinances were replaced by laws in parliament during its monsoon session last year.
More recently, the government has approved the re-promulgation of the ‘Commission on Air Quality Management’ (CAQM) in April, after it was first brought out on October 28, 2020, drawing flak.
The ordinance allows for the setting up of a statutory body to manage air quality in India’s polluted National Capital Region and adjoining areas of the Indo-Gangetic plain, which includes Punjab, Haryana, Rajasthan and Uttar Pradesh.
No reason has been cited as to why the first ordinance was ‘allowed’ to lapse last month when air quality was beginning to improve slightly. Sources said the government let the previous ordinance lapse because of the CAQM’s ability to prosecute farmers for burning crop stubble.
Writing for The Wire Science, Ritwick Dutta said:
“During the constituent assembly debates, there was serious apprehension about resorting to ordinances as a means to enact a law. One member of the assembly, K.T. Shah, said that promulgating an ordinance as a “negation of the rule of law”. Shah’s concern was that even when the government issues an ordinance to rise up to “extraordinary circumstances”, we must not overlook the fact that it was passed without debates and discussion.”
The Supreme Court in the Krishna Kumar (2017) case said that “re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law-making authority in a parliamentary democracy”.